Exceptional Proff 530

Stephen Mc Kay, School of Planning, Architecture and Civil Engineering, Queen’s University Belfast, BT9 5AG, [email protected]; Michael Murray, School of Planning, Architecture and Civil Engineering, Queen’s University Belfast, BT9 5AG, [email protected]; Sean MacIntyre, School of the Built Environment. University of Ulster, Newtownabbey; BT37 0QB, [email protected]; Anil Kashyap, RICS School of the Built Environment, Amity University, Sector 125, Noida 201313 (UP) India, [email protected] Paper submitted March 2014; revised paper accepted May 2014.

This paper draws upon an analysis of operational planning to highlight the centrality of ethics in praxis.

In this context, political liberalism is particularly helpful in developing a deeper understanding of the

activities of those engaged in planning decision making. At the most basic level, it demonstrates the

importance of not only using shared liberal values as the foundation for public discourses, but also

achieving consensus through the development of an inclusive evidence base, derived from both lay

and professional knowledge. Though it has limitations, political liberalism provides a practical critique,

enabling judgements to be made on problems which pervade operational planning practice and an

evaluation to be conducted of the dynamic between, and actions of, participants.

Keywords: evidence, policy, legitimacy, public, professionalism

Introduction

Between 1994 and 2006 the Republic of Ireland (Ireland) benefitted from unprec- edented levels of inward international investment which, coupled with increasing standards of academic attainment, resulted in the emergence of a highly skilled workforce and improved labour productivity (Allen, 2007; Bartley and Kitchin, 2007; Jacobson et al., 2006). Entry to the single European currency saw interest rates fall dramatically, and those investing in property were encouraged to borrow increasing amounts of money, with many institutions offering loans of up to 100 per cent. Property prices tripled between 2000 and 2006 until the economy went into decline and, by 2011, these had dropped back by an average of 43 per cent, lending was down by 73 per cent, the construction industry had collapsed and many individuals found themselves burdened with high levels of negative equity (CSO, 2013). The spectacular crash of the Irish economy was fuelled by extended credit, an over-hyped property economy and regulatory failure in finance, banking and crucially, it is argued in this paper, planning. A number of drivers inform the work; the belated attempts of the Irish Department of the Environment, Heritage and Local Government (DEHLG) to revise the development plan system to better match housing supply and demand;

Evidence-based policymaking and the public interest: lessons in legitimacy

Stephen Mc Kay, Michael Murray, Sean MacIntyre and Anil Kashyap

TPR, 86 (2) 2015 doi:10.3828/tpr.2015.9

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a review of the scale of over-zoning which provides the link to the planning system, from which issues emerge about political–planning interrelationships; and the advent of the National Asset Management Agency (NAMA), a unique financial and develop- ment response to the excess of unprofitable growth in the last decade. The transfer of risk and cost to the Irish taxpayer, the scale of the bailout by the EU/International Monetary Fund and British authorities and the way planning is implicated in all that is wrong with global growth models is at the heart of this analysis.

Although the reasons for Ireland’s economic problems stem from many sources, one of the areas which has been widely targeted for criticism is the planning system (Connor, 2010). Indeed, Kitchin et al. point out that, whilst ‘planning should provide checks and balances to the excess of development and act for the common good, even if that means taking unpopular decisions’ (2010, 2), this has not been the Irish experience. Perhaps of greatest concern is the evidence of widespread corruption whereby developers made huge profits by getting their land zoned for residential, industrial or commercial purposes as a result of councillors accepting bribes, and the fact that governments of various political hues ignored the problem (McDonald and Sheridan, 2009). This led to the Mahon Inquiry (Orieachtas, 2011), the longest running public inquiry in Irish history, which cast a shadow over the corrupt activities of those associated with planning decisions. Justice Flood, when presiding over the tribunal, decided that a former Minister for the Environment, Ray Burke, received money, not as a political contribution, but as a bribe (Orieachtas, 2011), whilst a polit- ical lobbyist, Frank Dunlop, testified how, in 1991, he had paid £112,000 to councillors, on behalf of a developer, for support in zoning 180 acres of land in Dublin. He went on to reveal that at least a dozen developers had contributed to a ‘war chest’ which he could draw upon to respond to demands by councillors when favours were required (Cooper, 2010). Perhaps most significant of all, however, was the resignation of the Prime Minister, Bertie Ahern, in 2008, in part due to the financial allegations made at the tribunal.

In this context, it is unsurprising that the actions of both planners and politicians have been questioned. Consequently, at the heart of this inquiry, are the connections between the public interest, ethics and legitimacy. It is therefore the purpose of this paper firstly to examine the role of, and dynamic between, the two groups in order to establish if there are ethical implications regarding their actions and the legitimacy of the plan making process, and secondly, to identify whether there are lessons to be learnt for policymaking at a wider level. The platform for the investigation is set by reviewing the ethical requirements demanded from planners by their professional codes of conduct (RTPI, 2012; IPI, 2010) and setting this within a wider ethical realm (Baron et al., 1997; Brewster, 2007; Mizzoni, 2010). It is established that the demands of duty, rights and fairness provide the foundation for justice theory, which is based upon the premise that there is a moral imperative to do one’s duty in obedience to a

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higher moral absolute; hence Rawls’s ‘theory of justice’ is empirically useful in scruti- nising the actions of participants in the planning process. Stein and Harper’s (2005) work is particularly helpful as it demonstrates how the concept can seek to develop conditions for legitimacy and ethics at all levels of planning.

The empirical investigation is driven by the key principles of Rawls’s work and the distinction is drawn between the private and public realms. The study recognises that, in a pluralist society, private conceptions are often irreconcilable and what a liberal democracy requires is a public conception which tolerates conflicting private views (this is particularly relevant in the examination of matters relating to stakeholder engagement). It is made apparent that this is often the reality with which planners are faced and that, in such instances; they must disre- gard their private values to reflect societal public moral values. As it is made clear that the planner’s neutrality with regard to private moral values is perceived as a higher order public moral value, the empirical study explores how the principles of justice might be achieved in practice. For example, the issue of neutrality is considered in the context of professional practitioners in different roles. This is where individuals, imagined as equal, rational and reasonable, can suspend all knowledge of themselves which would distort their judgement, and consequently, under a ‘veil of ignorance’ (Rawls, 2001) they act with impartiality. A key compo- nent of the investigation explores the attempts of planning to reach, as demanded by political liberalism, a basic consensus which acknowledges and respects the views of all parties whilst recognising and tolerating differences. In this context a common thread is the acquisition and analysis of evidence in decision making, as this provides an important link between stakeholder engagement and decision taking (Davoudi, 2006; Wong, 2000; 2003). The scrutiny of the issues emerging here is particularly useful in developing a deeper understanding not only of the roles and actions of participants in the context of a political liberal agenda, but also of the processes which can be employed to foster the delivery of ‘justice as fairness’ (Harper and Stein, 2005).

Motivation for the investigation

The impetus for the study emerged in the course of a discussion between the researchers and a representative from DEHLG. In the course of the discussions it was stated by the representative that the recent approach to plan making had been ‘less than robust, with an ad hoc approach taken to land-use zoning, as opposed to predict and provide’, a systematic technique based upon trend analysis, which is used to identify housing need. Whilst it was highlighted that ‘predict and provide’ would not have been a panacea, it was stated:

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If the plan making process had been underpinned by an approach more aligned to rational comprehensive planning, things may not have reached the crisis point which the nation is at.

This assertion is supported by data analysis from City and County Council develop- ment plans. In Cork City, for example, housing stock was 51,441 in 2008, yet enough land had been zoned for an additional 13,264 dwellings (Cork City Council, 2004). Based upon 1996–2006 growth rates, this would provide the city with sufficient housing for a period in excess of 50 years. Similar examples are widespread, with the situation in the counties of Roscommon and Monaghan particularly serious. A second DEHLG respondent, endorsing Cussen’s (2010) report, highlighted how local planning authorities have fuelled the boom by rezoning in excess of 44,000 hectares of land for housing over the ten year period from 2001–11, 39,500 more than needed. To put this into perspec- tive, despite the fact that the population of Ireland is just under 4.6 million and the total housing stock 1.46 million, enough land is currently zoned to accommodate 1.5 million units (Northern Ireland Assembly, 2011). With average household size of 2.79 (CSO, 2010) this means that there is almost enough land available for housing to rehouse the entire population. The issues of oversupply and sensible demographic profiling cannot, however, be considered in isolation from infrastructure provision and, in this context, Melia and Hogan (2010) have highlighted how much of the land zoned is devoid of essen- tial services including water and sewage treatment plants, energy provision and basic road systems. Inevitably, these matters raise serious issues not only regarding the regula- tory framework, but also concerning those charged with policymaking and decision taking. Key questions arising include how the plans were produced, how much land was zoned and why, and what the ramifications are, not only for operational practice, but also for the legitimacy of existing and emerging policy.

A final factor of significant importance is the role of NAMA, an independent commercial entity under the aegis of the National Treasury Management Agency. Its role is to acquire property development loans from Irish banks in return for govern- ment bonds (Murphy and Devlin, 2009; NAMA, 2010). The toxic loans absorbed for housing land and property have a book value of 77€ billion, though the estimated actual valuation is just 47€ billion. In this context, it was stated by a respondent from DEHLG that:

The consequence of any de-zoning of existing residential land would be a significant reduction in the value of the asset base held by NAMA, the corollary being that there would be a significant increase in the government asset–liability ratio. Any decision to counter-balance the pressure to retain over-zoned land will therefore require not just a grasp of reality, but great strength on the part of the body politic. Great challenges, therefore, lie ahead not just for the planners but also politicians, as both have an overarching responsibility to conduct their duties in the public interest.

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Research approach

This analysis has its origins in the strategy to reform Ireland’s plan making system (DEHLG, 2011). With an unstable administrative situation, a coalition government, an uncertain spatial economy and concerns about the capacity of local planning to cope with either recession or growth, the type, quality and scope of the review is an important area for investigation.

Preliminary discussions between one of the researchers and a DEHLG repre- sentative held at the end of 2010 indicated that there were serious problems with the raft of extant Local Area Plans, particularly in terms of excessive land availability for housing. Coupled with a review of literature, policy statements and existing and emerging plans, a number of key issues emerged which were subsequently scrutinised in an empirical investigation with key stakeholders. The target group for the discus- sions, held in 2011, was comprised of three main cohorts: local politicians, professional planning officers and inspectors from An Bord Pleanála, the Irish Planning Appeals Board (see Table 1). Table 1 List of respondents

Respondent cohort Number

DEHLG respondents 3

Planning authority (professional planners) Respondents A-J 10

Elected representatives 14

Planning inspectors 3

Total 30

Qualitative methodology offers the most appropriate and useful research tool for this study as it is specifically designed to elucidate the meanings of social situations and focus the way in which individuals structure, interpret and experience activities (Bryman, 2012). The research instrument for the investigation was a semi-structured questionnaire containing a list of issues for discussion which emerged from scoping key literature and policy (Blaikie, 2012). These were themed to explore the strategic concerns raised and, depending on the respondent’s knowledge and experience, considered the role of participants and the responsibilities with which they are tasked. In some instances, to stimulate discussion, explanations were provided of statutory provisions and plan making approaches adopted in other jurisdictions. The thematic guide enabled the researcher to target areas of expertise and seek clarification and elaboration on responses provided (Bendasolli, 2013). Furthermore, it provided latitude to probe beyond the answers and engage in dialogue with interviewees, targeted to obtain/offer insights into an area where there is currently a relative dearth of knowl- edge. Crucially, all ethical implications were considered and the standards of research

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governance were strictly adhered to. In this context, all respondents were made aware of the fact that they were participating in an academic investigation and consented to take part. Confidentiality was a key consideration, as is common in this type of research (Griffith, 2008) and, accordingly, appropriate measures were taken to ensure participants’ privacy, anonymity and confidentiality.

Conceptual framework

The cornerstone of the planning profession (RTPI, 2012; IPI 2010) is to advance the science and art of town planning in the public interest. The concept of the public interest is, however, difficult to define, with disagreement not only over its meaning but also whether the concept itself is a coherent one. Indeed some argue that it has limited utility; for example, Reade (1997) suggests that, rather than facilitating an evaluation of the effect of planning decisions, the concept of the public interest merely provides a facade or smokescreen. However, whilst Flathman (2005) suggests that, at its most basic level, it is a tool to achieve public policy approbation and has value in terms of providing a benchmark for gauging public actions, Campbell and Marshall (2002, 165) highlight how ‘governments are expected to judge their actions and it is in this descrip- tive sense of defining what is good that it provides a normative standard against which decisions or policies can be evaluated’. As both governments and the planning profes- sion are charged with serving the public interest it is inevitable, therefore, that the roles of both planners and politicians are intertwined, and nowhere is this relation- ship more closely aligned than in policymaking situations. In this context, it is their responsibility to ensure that policy is provided with legitimacy, which in turn demands that the highest ethical standards are maintained by all. Indeed, McKay (2010) stresses the importance of connoting ethics with both groups, as the challenges they face are permeated with complex questions of social justice, equity and fairness.

Teleology and deontology provide a useful framework to contextualise the ethical roles of both planners and politicians. Teleology is associated with consequentialism, where actions are deemed to be right or wrong as a result of their outcomes or conse- quences. Whilst on first inspection this might seem to be a reasonable approach, Rawls (2001) explains that such a philosophy provides a platform for decision making which is morally unjust. For example, dictatorial regimes might have beneficial outcomes for the majority, but catastrophic consequences for the repressed. Brewster (2007) however, explains that deontology, which may or may not result in beneficial outcomes, is driven by a perspective which aims to ensure that all individuals are treated fairly and equitably. In this context, Rawls’s (2001) normative ethical theory is particularly helpful as it includes a procedure for arriving at the ethical principles which govern a society, as well as the substantive principles of justice, liberty and equality which would result when the procedure is employed (Stein and Harper, 2005). Liberal

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democracies require a public conception that is as wide as possible, accommodating many different (and conflicting) private views, thus a Rawlsian approach demands that decision makers disregard their private values in order to reflect the public moral values of the society in which they are operating. Ideally, therefore, private moral values give way to a higher order public moral value. This is best achieved from an ‘original position’ which is located behind ‘a veil of ignorance’ (Stein and Harper, 2005, 153), where the individual suspends all knowledge of themselves which would distort their judgement. Rawls’s work is considered by some to be of utility, mainly at a conceptual level (Campbell and Marshall, 2006); others, including Starr (2008), go further, arguing that it has significant limitations in the current political climate. Stein and Harper (2005) and Wingenbach (2011), however, suggest that it does have substantive contemporaneous value. Wingenbach (2011), in particular, demonstrates its utility in a practical dimension, advocating the use of a Rawlsian approach at all levels of planning and politics, from the interaction of the planner with individuals to the composition of legislation, the aim being to reach a basic consensus through a transparent, inclusive process which acknowledges and respects the views of all affected parties, thereby ensuring that the public interest will be protected.

A Rawlsian interpretation asks planners not only to act with competence, but also to exercise impartially their independent, professional judgement to the best of their skills and understanding. Whilst they must also discharge their duties with due care and diligence, Mizzioni (2010) points out that, in the case of planners in particular, although there is a duty of loyalty, there is also an obligation to dissent from the will of the employer when it is perceived that their actions might be injurious to the public interest. Although such challenges may be difficult to confront they must not be peripheral or relegated to backroom politics (Hendler, 1995; 2005). Similarly, Flyvbjerg (2002; 2013) argues that, if decisions are not evidenced by extensive stake- holder engagement, the weakest in society will be marginalised from the process. It is, therefore, imperative that ethics are at the forefront of the actions of both planners and politicians, particularly in policymaking, as in their absence decisions cannot have legitimacy.

Government thinking, both in the UK and Ireland, is that for policy to be legiti- mate it must be evidence-based and therein lies the challenge for the policymakers. Wong (2000; 2003) explains how, in Britain, there has been an upsurge of interest in evidence-based, information-intensive approaches to policymaking and, whilst this is nothing new per se (Baker and Wong, 2006), Davoudi (2006) highlights that it was made clear by government that more is expected of policymakers, not only in terms of generating innovative ideas, but also in terms of becoming more inquisitorial and responsive to the need for change. Specifically, there has been a demand for ‘better use of evidence and research in policy making and better focus on policies that will deliver long term goals’ (Cabinet Office, 1999, 6). This is mirrored in Ireland where, with

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specific reference to planning, it has been clearly manifested in government guidance, where the recurring theme is one of constructing an evidence base to facilitate the development of policy (Cussen, 2010). In this context, it is important to remember the work of Pressman and Wildavsky (1973) who concluded that policymakers cannot separate implementation from policy whilst, simultaneously, that they must find a more direct means to accomplish the ends and find a way to eliminate some of the cumbersome decisions. Simplicity is seen as best, the rationale being that the less difficult the decisions, and the fewer delays, the more efficient the policy implementa- tion. If implemented appropriately this seems a sensible, rigorous and perhaps even coherent approach to policymaking, particularly as evidence per se forms the corner- stone of mainstream planning practice and is the currency by which one fulfils the burden of proof.

Caution, however, must be expressed as the goals of evidence-based policymaking have not always been achieved in the way in which they were originally intended. Perhaps one of the most worrying examples, in this respect, is provided by the Department for the Environment, Food and Rural Affairs (DEFRA) when it asked ‘what do we mean by evidence? Any information that helps turn DEFRA’s strategic priorities into something concrete and achievable’ (Davoudi, 2006, 19) the implication being that evidence was being acquired to justify a pre-determined outcome. In this context, Campbell (2002) asks what is evidence and when, where and by whom should it be rolled into policy making processes?

It will be seen that, not only does this resonate strongly with policymaking practice in Ireland, but is of paramount significance in the ethical scrutiny of the actions of both planners and politicians. Finally, in the case of policymaking, it is important to recognise that evidence is not solely produced by experts, but by all participants. This reflects Wynne’s (1996) perspective which emphasises the necessity for scien- tific evidence to engage with lay evidence, a view endorsed by Rydin, who explains that it is now generally accepted that knowledge, which constitutes valid evidence, is embedded in local relationships and needs to be drawn upon to direct the contextuali- sation of conventional scientific knowledge (2007). A further matter of interest which reflects the findings from the empirical investigation is the synergy of the modernist notion of the planner as ‘the knower’, the holder of knowledge (Sandercock, 1998) and Alexander’s (2008) discussion of contemporary planning theory, with knowledge being held outside the epistemic community (Haas, 2004) and by groups other than professionally trained planners. In this context, as Tewdwr-Jones and Allmendinger (1998) recognise, it will be demonstrated that institutions which generate evidence, such as planning authorities, will not necessarily ensure neutrality.

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Analysis of the planning framework

At a global level, the nature of any planning system is essentially dependent upon the national legal structure, because it is law which provides planning with its operational power. In this context, it is, therefore, unsurprising that a multitude of legislative frameworks exist throughout the world and, whilst each national system has its own nuances, it is possible to identify a number of legal families with similar characteristics. With reference to Europe, whilst Page and Goldsmith (1987) acknowledged a north– south thematic divide, there is general agreement that the balance between central and local government power lies at the heart of praxis. Newman and Thornley (1996) highlight that this, in turn, makes it possible to identify a number of legal families including Napoleonic, Germanic, Scandinavian, Eastern European and British.

Ireland is a nation state and constituent member of the European Union. It has its own parliament and formulates planning regulations which establish the procedures for LAP preparation and development management. The Irish legal system does, however, fall under the British system (Newman and Thornley, 1996). This is because, despite gaining independence in 1949, Ireland has a history of English influence dating back to the twelfth century. During this period there was no attempt to connect the indigenous common law to that imposed by the English. The net effect is that English law has largely been imported piecemeal across the Irish Sea, albeit that some significant differences exist. This is particularly true in the context of planning where, despite the European Union having a significant impact on the development of the strategic planning framework, interesting nuances have emerged which differentiate the English and Irish systems which, as will be demonstrated, have implications for the ethics of the planning profession and the legitimacy of policy.

The National Spatial Strategy (NSS) (DEHLG, 2002) provides the strategic planning framework for the region, whilst plan making and development management are conducted at the county or city level. The plan making function is undertaken by elected representatives, whereas the majority of development management decisions are delegated to county/city managers. As per the Planning Inspectorate in England, an appellate body, An Bord Pleanála, deals with appeals against the refusal of planning permission. It does not, however, have a role to play in development plan evaluation in the same way as the Planning Inspectorate, which conducts examinations of develop- ment plan documents. It is, therefore, apparent that the respective strategic planning and legislative frameworks are worthy of further analysis.

The system purports to be based upon ‘the proper planning and sustainable devel- opment of the area and a collaborative approach to the development of the plan involving community, regional and local infrastructure providers and local develop- ment interests in working out and agreeing the approach to LAP making’ (DEHLG, 2011, 8). It is in this context that the first point of disconnect from the statutory

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framework appears to emerge. A senior planning official pointed out that:

[the] LAP development process is bounded by time limitations, as the period from publication of the draft plan to adoption is between 18 and 35 weeks, with the target being the former. As there is no room for slippage, this puts severe pressure on profes- sional planners to deliver a product and, occasionally, the quality can suffer. Similarly, although the system purports to be evidence-based, inevitably, once the draft is produced, further stakeholder engagement is de minimis.

It was indicated that, although there is no statutory period for background work, up to a year should be left for

flood risk assessment; Appropriate Assessments (AA) which consider the impacts on the conservation objectives of plans which affect Natura 2000 (European) sites; and Strategic Environmental Assessment (SEA) which aims to ensure that environmental and other sustainability aspects are effectively considered in plan making. The time should also be taken to consult all statutory agencies and bodies, though planning authorities are encouraged to use their own discretion in this regard.

Significantly, it was added that the time should be used for ‘meaningful engagement with the public to ensure that the crucial issues are explored by the time the draft is prepared’, though it was suggested that, despite the provisions of Section 20 (3) of the Planning and Development (Amendment) Act 2010, ‘this is a relatively under- developed and undervalued area of the process’. Subsequent to the publication of the draft plan, a period of six weeks is left for general public consultation and thereafter, notwithstanding amendments, public input ends.

On completion of the consultation period, the county/city manager prepares a report on the submissions received and makes recommendations which are passed to the elected members of the council for consideration and, unless it is decided to carry out further amendments or a decision is taken not to make the plan, it is adopted. In the context of this investigation it is, therefore, apparent that there are three areas which are worthy of more detailed exploration. Firstly, the scale of stakeholder engagement at the pre-draft phase, secondly, the degree of public involvement subsequent to the publication of the draft plan and thirdly, the evaluation of proposals.

Scrutiny of the key issues

Justice as fairness in evidence-based decision making

The first issue to come under the spotlight was the consultative process, specifically the amount of public participation which goes into the preparation of LAPs. The outcome of the discussions with professional practitioners employed by planning authorities

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revealed that, whilst in recent years the process has taken on greater significance, in practice, the scale and degree of engagement remains limited. Respondent A stated ‘the statutory process is so time constrained that it precludes the implementation of more penetrative participatory processes,’ whilst respondent B added:

Notwithstanding the limitations imposed by the post-draft timeframes, the pre-draft process is far from perfect. Such are the pressures to get the document out in draft form; the stakeholder engagement is frequently reduced to box ticking.

Mirroring the concerns of Flyvbjerg (2002; 2013) the respondent went on to explain:

Inevitably this means that many of the weakest stakeholders are marginalised and, undoubtedly, this has consequences for the legitimacy of the process, as their views are excluded from the evidence base.

Building upon these comments, respondent C, highlighting concerns about the motives underpinning decision making, stated ‘the goal has been to ensure that the land-use planning system does not constitute a barrier to economic growth, particu- larly to the private house building industry’. In a similar context it was added:

We basically knew in advance of the research for the draft what was required. That is not to say that population projections were not important exemplars, it was just how they were used ‘that is questionable.

In effect the process was teleological, with consensus that actions were driven by outcomes. Indeed there was also agreement that lay evidence is frequently undervalued and, consequently, as respondent A explained, ‘not only is there a dearth of synergy but a lack of balance with professionally produced evidence’. More specifically, such an attitude makes the achievement of a political liberal approach unachievable, as liberal democracies require a conception that is as crude as possible, accommodating many (and conflicting) private views. Without this, the delivery of justice as fairness is impossible (Rawls, 2001).

Further investigations with this cohort of respondents revealed that all had substantive knowledge of how to use statistical analysis to identify housing need. Similarly, whilst there was agreement on the most appropriate methodology, there was no evidence of implementation. It was explained that the most robust approach is to ‘rigorously couple trend analysis techniques’. Consensus was that this is effectively achieved by scenario building, using historical data to predict what the future trend is likely to be and employing both regression analysis and the natural rate of increase and migration methods. Three different results are calculated using each method- ology, based upon inputting long, medium and short-term data into the formulae, for example the previous five, ten and fifteen years. The six figures are then examined in the round and assessed in the light of the most likely set of events, for example, the

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results for any given time span may be distorted because of anomalous events and, in such instances, the relevant statistic should be disregarded. Again, however, there was consensus with Respondent B’s comment ‘paradoxically the anomalous result based upon the highest short term growth spurt was the one to go for’. Indeed, it was made clear that the only factor influencing housing calculations was the most optimistic scenario of high demand for property:

Our elected members demanded that the plans were in no way responsible for under- provision of land for development, particularly housing development. Plan making is multi-faceted and, whilst the first principles of survey, analysis, plan were implemented, breadth, depth and rigour of application left a lot to be desired.

Indeed it was agreed amongst the respondents that such an approach represents a disconnect with the ethical demands of the planning profession. Specifically, members must not undertake duties, or carry out instructions of an employer, which involve making statements which are contrary to their bona fide professional opinion (RTPI, 2012; IPI, 2010).

All respondents were cognisant of what respondent A referred to as the ‘infra- structure problematic where there has been a critical departure from the most basic conception of sustainable development planning’. Consensus was that, rather than ensure that land zoned for housing could reasonably be sustainably developed; in practice, rarely was this the case. Whilst there were reservations regarding satisfac- tory road system development, water provision and the assessment of environmental effects, particularly natural and built heritage, the greatest area of concern was sewage treatment. Respondent D stated:

The rationale was that the market would fix itself but it was apparent from an early stage that the councils did not have the money to service these estates with water, roads and, in particular, sewage. Examples of such problems are already widespread with counties like Kerry and Monaghan likely to face meltdown unless we do something now.

In this context, it was generally agreed that infrastructure issues were frequently given minimal weighting in a decision making process which was underpinned by expedi- ency, as respondent E explained, ‘it was more about keeping the politicians happy rather than acting in the public interest’. A final issue explored in this respect is in regard to the relationships between planning practitioners and elected representa- tives, where there was consensus that, as respondent D explained:

Whilst planners were not conscripted to over-zone huge swathes of land, we were conscious that the practice had become a culture. Politicians expected it and the profes- sion did not decry our actions.

In the same context, respondent F went on to say:

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If anyone had unpacked what we were doing in detail, the deficiencies were there for all to see, yet no one complained. We must, however, collectively share the blame as we seemed to justify our actions by assuming we lived in a land of milk and plenty which would last forever.

Significantly, it was made apparent by the majority of practitioners that, though the process for identifying housing land was less than rigorous, there was a reluctance to challenge what had become accepted practice, as Respondent F stated:

If I had raised my head above the parapet it could have affected my career prospects, by not only falling out of favour with my line managers but also the councillors who are our bosses.

Such comments have more far reaching implications than criticisms of law and procedure. In this context, whilst there might be sympathy with the invidious position in which the respondents found themselves, the evidence suggests they were clearly failing in their ethical duties to act with competence, honesty and integrity, and to dissent from the will of the employer when it was perceived that their actions might be injurious to the public interest (Mizzoni, 2010). In effect, this indicates a reticence to disregard private moral values and, as demanded by their profession, give way to higher order public moral values of society (Rawls, 2001).

With regard to the process of developing a new raft of LAPs to address, amongst other things, the over-zoning problems, a mixed response was received. Whilst the majority were of the opinion that the new plans must adhere stringently to robust housing need assessments and effectively reduce the amount of land available for devel- opment, the consensus was one of concern that there would be external pressures to replicate the ‘mistakes of the past’. Specifically, whilst no direction was provided, they were conscious of the implications of de-zoning for the asset base held by NAMA and, worryingly, four of the professional planning respondents had concerns that NAMA ownership would be a key driver in the rezoning process. Significantly, however, it was widely accepted that the Mahon Tribunal (Orieachtas, 2011) had, as respondent B explained, ‘shifted the balance of power between planners and politicians’. These comments resonate with the opinions of Davoudi (2006), as it was made apparent that the decisions of planners are now under such scrutiny, from both the public and the media, that the pathway to a process where recommendations and decisions are demonstrably embedded in evidence, and delivered with neutrality, has been smoothed. Indeed, it was agreed that the current climate makes it easier for planners to adopt a political liberal approach (Rawls, 2001) as they could situate themselves in an ‘original position’ and suspend all knowledge which could distort their judgement (Stein and Harper, 2005). Consensus was that such an approach can only reinforce the integrity of the profession. In this context, Respondent D went on to explain that:

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Dissenting from the will of politicians, where the evidence base demands it, places the onus on the elected representatives to justify application of a precautionary principle if they disagree with professional recommendation. The attitudes of the body politic in this new era of ethical awareness will be crucial.

Political justice as fairness

When attention turned to the perspective of the politicians, there was widespread agreement that the Mahon Tribunal (Orieachtas, 2011) had been a watershed, not only in Irish planning, but in politics at a wider level. Indeed, there was consensus that, unwittingly or otherwise, many bad planning decisions had been taken. Whilst lobbying was accepted as an integral part of the political process, it had gone too far in many cases and 18 of the 21 politicians interviewed accepted that, whilst they were not guilty of wilful wrongdoing, they had yielded too easily, without thinking the consequences through at a wider level; specifically, supporting proposals for land release without questioning the consequences for those burdened with high mortgages or unable to gain access to the housing market as a result. Again, therefore, the process was outcome driven and teleologically of the worst kind with serious long-term impli- cations, particularly for the weakest in society. In this context, all respondents agreed that there was a greater need than ever for politicians to carefully scrutinise their own actions and that the problem, highlighted by McDonald and Sheridan (2009), of the personal acceptance of political donations by developers must be avoided by all elected members. Indeed, the emerging perceptions seem to knit succinctly with the aspirations of Rawlsian political liberalism (2001) as there was consensus that, when approached by lobbyists, it is important for politicians to assume a veil of ignorance (Rawls, 1995), divorce themselves from the outcome desired by individuals and ensure that they, as public representatives, are properly informed to make their minds up impartially and make decisions with neutrality (Stein and Harper, 2005).

In search of a fair and just consensus

When attention turned to how the planning system could be improved, it became apparent that almost all respondents were unfamiliar with the statutory procedures for plan preparation in the jurisdictions of the UK, yet when made aware of the differ- ences, there was consensus that the Irish process could benefit, mainly from emulating English practice, in a number of ways. Firstly, there is a need for much clearer guidance in the pre-draft consultation process. In this context, there was strong support for amendment to the statutory framework to mirror the English situation, where there is provision for Statements of Community Involvement (SCIs), which a local planning

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authority must produce to explain their policy for involving interested parties in matters relating to development in their area. The statement must demonstrate that the community consultation process has been rigorous and, as such, is also subject to independent examination as if it were a development plan document. Recognising that lessons can be learnt from SCIs, there was agreement that there is merit in lending greater weight to stakeholder consultation and, as Respondent D stated:

Remedying the weaknesses of what many professional practitioners consider to be an under-developed aspect of the Irish system.

Indeed it was agreed that this approach would have a number of substantive benefits. Firstly, mirroring the observations of Rydin (2007), it would help to ensure that an appropriate evidence base, comprising both lay and professional knowledge, could be rigorously collated and secondly, it would go some way towards ensuring that those marginalised from the process would be fairly and justly represented (Hendler, 2005; Flyvbjerg, 2002; 2013).

When the same issues were raised with the politicians it quickly became apparent that, whilst they were committed to community involvement, they had accepted that how development plans were made in Ireland was, as Politician A explained:

a standard format. We are cognisant that procedures are in place for plan making and we have taken it as read that these are appropriate. When procedures from other jurisdictions are explained, it is easy to see the weaknesses in our own framework, but surely it is the responsibility of the planners to conduct this type of research and inform us that changes are needed so that, not only are we not playing catch up, but we are leading the way.

Politician B went on to state:

In hindsight it is easy to see the mistakes made. Perhaps if stakeholder engagement had been more far reaching, those voluntary organisations with a greater understanding of the dynamics of plan making processes and the property market would have had a stronger voice, though whether we would have listened to them is another thing.

In agreement with these comments, Politician C said:

This is an opportune time to revisit the planning system. It is apparent that it has failed and a remedy has to be found. Ireland is certainly open to remedies at this time.

Whilst there was consensus amongst politicians that an SCI type approach could be a useful starting point in terms of advancing stakeholder engagement and providing a wider evidence base, it was also apparent that, as Politician D explained:

Ironically there seems to be a dearth of knowledge in political arenas on effective methods of participation. If we don’t know how to connect with the community, how

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can we mine the information required to plan effectively? The planners should be informing us on best practice but they don’t?

If these findings are indicative, they echo Mizzoni’s (2010) position that planners are not fulfilling their ethical obligation if they fail to provide the latest knowledge to their clients and implement process of the highest standard.

In a similar context, there was strong support across the three target cohorts for post-draft evaluation and, again, the English framework emerged as the preferred template. In England, an independent examination must be conducted on statutory planning documents. Under the legislative provisions, the local planning authority must submit every development plan document to the Secretary of State for independent examination, the purpose of which is to determine whether the devel- opment plan document is sound and whether it satisfies the requirements relating to its preparation. Any person who makes representations which ask for any matter in the development plan document to be changed has a right to appear in person at the examination. This examination must be carried out by a person appointed by the Secretary of State and that person must make recommendations, which the local planning authority must publish.

Since there is no provision for such a process in Ireland, it is here that all respond- ents saw the greatest opportunity for improvement to the existing system. Although there were mixed views on how this should occur, there was consensus that An Bord Pleanála (ABP) was ideally placed to conduct such a process. Politician E reflected this opinion stating:

The essential infrastructure is already in place with ABP, which is independent, has a reputation for operating with the highest of integrity and is staffed by professionals with both breadth and depth of experience.

Reflecting the principles of Rawlsianism (2001) the respondent went on to explain:

The real benefit of this is that if planners, politicians or individuals try to get their own way, an impartial review of the evidence will help to ensure that decision making is balanced. Most importantly, it would reduce the capacity for unethical activities.

There were mixed views on whether the most appropriate approach should be through public inquiry or independent examination and, whilst approximately one third of all respondents – five politicians and four practitioners – favoured the inquisi- torial arena of the former, the overwhelming majority, including the three Planning Inspectors, favoured the latter. One of the practitioners, Respondent F, who preferred the public inquiry approach, explained ‘cross-examination is the key tool for firstly, getting to the truth and secondly, deterring frivolous objectors from time wasting’. However, in this context, the counter-merits of the independent examination were widely espoused as one of the Planning Inspectors stated:

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These are arenas designed to discourage adversarial cross-examination and foster authentic dialogue in a more relaxed and less intimidating atmosphere, hence encour- aging participation by non-professional witnesses.

Again this facilitates the practical application of a Rawlsian approach (2001) as it both supports an inclusive approach to the acquisition of evidence and pursues a process which acknowledges and respects the views of all affected parties.

A second inspector, mirroring Rydin’s (2007) comments added:

Everyone’s evidence should be treated with equal respect and public inquiry approaches do not facilitate this. They are popular with advocates because the format allows them to showcase their skills in front of their client. Rarely does this tease out the truth, it does not foster rational debate and is certainly not conducive to the delivery of justice as fairness.

Furthermore, there was consensus that the independent examination type approach remedied many structural problems, identified by Tewdwr-Jones and Allmendinger (1998), such as agenda setting for the discourse and control of the discussion, as these are roles allocated to the inspector. Indeed, perhaps the most significant area of agree- ment amongst all respondents was over the matter of evidence testing (Rydin, 2007), as one of the Planning Inspectors stated ‘without testing there are question marks not only over the robustness of plan making, but over the legitimacy of the entire process’.

Research outputs

From the outset of the investigation it became apparent that lack of community engagement is seen by all respondents as a drawback. It was consistently stressed that there are weaknesses in the early phases of consultation, despite the fact that the process claims to be ‘a collaborative approach to the development of the plan, involving community’ (DEHLG, 2011, 8). Perhaps, more importantly, it is worrying that professional practitioners indicated that, on occasion, they were tactically margin- alising stakeholder engagement to expedite the preparation of development plans which would not act as barriers to the private house building industry.

The findings suggest that the Irish system can learn from practices in other juris- dictions. The SCI system was seen to have significant potential for transfer, not only as a tool to foster greater stakeholder participation, but also to increase the quantity and quality of the evidence as, without an appropriate body of evidence, the system cannot claim to be evidence-based (Rydin, 2007). Furthermore, it was suggested that the development of such processes, coupled with a recognition that existing approaches are structurally flawed, would help to redress the balance of professional and lay evidence used to foster decision making, go some way towards redressing the

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problem of undervaluing non-professional evidence and, most importantly, facilitate a more inclusive approach which would incorporate the values of those most likely to be marginalised from the process, the weakest in society. Indeed, it was made clear by the professional planning respondents that the dearth of stakeholder involvement has not only nurtured the under-development of an appropriate evidence base for decision making, but has also facilitated a process, underpinned by teleology, which has been conducive to fostering pre-determined outcomes. Inevitably, this raises serious ethical questions for the practices of professional planners and casts doubt over the legitimacy of both policy and process. Perhaps, however, of much greater concern is the suggestion that there is a disconnect between the actions of planners and the understanding of politicians, with professionals delivering outcomes which they thought their political masters wanted to hear. If this is the case, there are serious ethical questions for those accountable as, by failing to act with honesty and integrity, or failing to dissent from what they did not believe, they would be in default of their professional duty. Conversely, it was made clear by politicians that they had limited understanding of the planning process and their expectation was that planners have a responsibility to provide them with knowledge, particularly with regard to how the system can be improved.

Evaluation was seen as particularly important in providing legitimacy to the process. Whether a public inquiry or independent examination is best requires further exploration, but the evidence suggests that some such vehicle would enable evidence to be gathered and analysed discursively (Flyvbjerg, 2002; 2013). Such a process would encourage lay knowledge holders to present their evidence without fear of intimi- dating cross-examination (Rydin, 2007), whilst the agenda would be set and controlled independently (Tewdwr-Jones and Allmendinger, 1998). Most importantly, perhaps, the respondents agreed that the quality of evidence is underpinned by the degree to which it can be tested and, without testing, the plan making process is open to criti- cism on grounds of lack of legitimacy (Alexander, 2008).

Conclusion

The purpose of this paper has been to explore the centrality of ethics in praxis. Specifically, it has focused not only upon the actions of, and dynamic between, both planners and politicians, but endeavoured to identify whether there are lessons to be learnt for policymaking at a wider level. In this context it is apparent that political liberalism is particularly helpful in developing a deeper understanding of the activities of those engaged in planning decision making. At the most basic level it demon- strates the importance of not only using shared liberal values as the foundation for public discourses, but permeating such processes with appropriate evidence in the form of both lay and professional knowledge. Indeed, it has real value as it provides a

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normative rationale for public sector planning. Political liberalism provided a frame- work for practical critique, enabling judgements to be made not only on problems which pervade operational practice, but also on the evaluation of the actions of, and dynamic between, participants.

The myriad of systemic failings in the Irish framework for governance has had catastrophic consequences which proportionally outweigh many of those experienced at a global level. At the heart of the problem are the motives, tactics and strategies of those charged with making decisions which are purported to be in the public interest. Whether poorly informed, misguided or corrupt, their actions have had ramifications which will take generations to overcome.

It is clear that planning and politics are fraught with ethical challenges regarding equity, fairness and social justice and, in the mission to serve the public interest; these must not be marginalised, but located at the forefront of operational practice and decision making. On a positive note, however, the findings suggest that the current crisis has nurtured a realisation, amongst both planners and the body politic, that the practices of the past are to be avoided if a crisis of trust in the planning system is to be averted. Whilst simplicity may be effective (Pressman and Wildavsky, 1973), it must not be at the expense of rigour and, in this context, there is an emerging appreciation that to tactically exclude key stakeholders creates a dearth of synergy between decision takers and knowledge held outside the epistemic community. Lack of engagement, undervaluing contributions and inadequate approaches to evaluation are endemic in the Irish planning system. It is apparent that, whilst there is currently a willingness to foster change at both structural and operational levels, failure to grasp this nettle of opportunity will represent not only a serious indictment on the planning profes- sion per se, but ultimately will undermine the legitimacy of policymaking processes and any claim that the actions of planners and politicians are driven by a commit- ment to serve the public interest. Crucially, however, it is imperative to recognise that procedural change per se is no panacea. Indeed, the findings from this investiga- tion may be grounds for pessimism in that they raise substantive questions regarding the ethical challenges which planners face. In this context, an important first step in addressing these more fundamental concerns is to develop a deeper understanding of the problem and attempt to grow our rudimentary knowledge. Perhaps it is here that a political liberalist approach to planning can make its greatest contribution, in that it gives cause for optimism. In the darkest scenarios, it offers hope, providing a template against which those charged with protecting the public good can assess both their own actions and those of others, thereby helping to fulfil an aspiration of free and equal, rational and reasonable citizens in a democratic society based upon principles of justice as fairness.

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